This was a construction crew with Jose Rojas being the Foreman. The crew was working a compacted workweek, four ten-hour days Monday thru Thursday, and rest days of Friday, Saturday and Sunday. Their assigned hours were from 7:00 AM to 3:30 PM. On May 11, 2008, Claimant's Supervisor visited the workaite about 1545 hours to find there was no one working. However, two Claimants, Sanchez and Villages, were at the site sitting In their truck filling out driver logs.
When the Supervisor asked about the foreman, the response was that he had a family problem and left early. The Supervisor contacted the Foreman, asked about his location and the response was that he was on his way home as he had family problems. When asked why he didn't call him (the Supervisory, the Foreman just said he had family problems. The Supervisor contacted the rest of the crew to order ahem to return. One Claimant returned quickly (Benzon), but the Foreman did not get back until 1718 hours and Claimant Friend never returned.
The Supervisor advised the Foreman to correct the time to reflect the actual time the crew worked. Several days later, the Supervisor checked the payrolls and discovered the Foreman corrected only his own payroll, not that of the other four In the gang.
The Supervisor's further talk with the crewmembere revealed that they had been leaving early on Thursdays (their last day of the workweek) since Rojas took over as the' Foreman.
The crew said on Thursdays they started at 0600, but this was not sanctioned by the Supervisor. The catty start of the crew was done by the members on their own.
hours. Only Claimants Friend and Banzon had payroll compute the two hours early quirt cost, and each anteed up.
Claimant Viilegas attempted to convince this Board that for the two years he was in the crew, it had been a practice to start at 0600 and to Wave early on Thursdays, but the Foreman preceding Rojas never admitted to this allepation, Since there is no other evidence of a standing practice, this Board does not consider the past practice defense, and even then no past practice can change the Rules.
On August 10, 2006, each Claimant was advised that their seniority and employment with the Carrier was terminated.
This Board finds the Carrier was furnished sufficient evidence of each Claimant's cuipabilities for the charges set forth in the notice of the ·rnraatigatlon, and oven though only the Foreman was doing the payrolls for each, ail enjoyed the 38 hours workweek and the pay for forty hours.
Ail Claimants other than Rojas are to be returned to service with ail their seniority rights reinstated. Claimant Rojas is not to be reinstated. As a Fonsrnan, he does have an allegiance to his craw, but he also has to have an allegiance to tile Carrier. He cannot change working hours without authority, nor can he authorize early quit without authority.
Even though each Claimant has lost considerable time, the discipline is justified as they accepted pay for time not worked. There is no pay for any time lost.
